AT v Secretary of State for Work and Pensions (PIP)

Entitlement to personal independence payment is subject to the prescribed residence and presence conditions. The past presence requirement in regulation 16(b) is a mandatory bright-line condition. A tribunal has no discretion to create a general exception for a claimant who was unavoidably prevented from returning to Great Britain, however compelling the circumstances.

The exceptions in Part 4 of the PIP Regulations apply only within their stated terms. In particular, the medical-treatment exception does not assist a claimant whose relevant condition began after leaving Great Britain. Nationality alone does not establish entitlement, and a challenge based on individual hardship is in substance a challenge to the legislation rather than an error in its application.

The appellant, a British citizen, had lived in South Africa since 2001. Serious injury and subsequent traumatic events delayed her return to the United Kingdom until 25 August 2021. She claimed personal independence payment on 9 September 2021.

The Secretary of State refused the claim because the appellant had been in Great Britain for only a little over a fortnight and did not satisfy the 104-week past presence condition in regulation 16(b) of the PIP Regulations. The First-tier Tribunal dismissed her appeal. The appellant appealed to the Upper Tribunal, contending that her British citizenship and the exceptional circumstances preventing an earlier return should exempt her from the condition.

1. Appeal dismissed. The First-tier Tribunal had correctly applied the law and had adequately explained its decision.

2. Section 77(3) of the Welfare Reform Act 2012 makes entitlement to PIP conditional on prescribed residence and presence conditions. Regulation 16(b) of the PIP Regulations requires presence in Great Britain for at least 104 weeks of the preceding 156 weeks. The appellant plainly did not meet that condition.

3. British citizenship is not itself an entitlement condition for PIP. The legislation assesses a claimant’s connection with Great Britain through the prescribed presence and residence criteria.

4. The appellant’s circumstances were accepted, but they could not create an exemption from the past presence test. The regulations contain only limited specified exceptions. The exception for absence to receive medical treatment in regulation 18 applies only where the relevant condition commenced before the claimant left Great Britain; it therefore could not apply here. None of the remaining exceptions could assist.

5. The tribunal followed the reasoning in HRA v Secretary of State for Work and Pensions (PIP), [2023] UKUT 109 (AAC). In the absence of a broadly framed statutory exception, neither the First-tier Tribunal nor the Upper Tribunal has power to add one on grounds of unavoidable overseas detention, hardship or individual justice.

6. The appellant’s complaint was accordingly directed to the effect of the legislation, not to any legal error by the First-tier Tribunal. The appeal was dismissed under section 11 of the Tribunals, Courts and Enforcement Act 2007.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and upheld the First-tier Tribunal’s application of the prescribed past presence condition.
• First-tier Tribunal (Social Entitlement Chamber): dismissed the appeal against the Secretary of State’s refusal of PIP, while granting permission to appeal to the Upper Tribunal.
• Secretary of State: refused the PIP claim on 14 September 2021 because the appellant did not meet regulation 16(b) of the PIP Regulations.